Planning and Development Regulation

Variance: Application of Unnecessary Hardship Standard

[Adapted from Owens, Land Use Law in North Carolina (4th ed. 2023)]

Statutory Standard

The standards and limits for variances are set out in G.S. 160D-705(d). That statute provides:

When unnecessary hardships would result from carrying out the strict letter of a zoning regulation, the board of adjustment shall vary any of the provisions of the zoning regulation upon a showing of all of the following:

  1. Unnecessary hardship would result from the strict application of the regulation. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property.
  2. The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or the general public, may not be the basis for granting a variance. A variance may be granted when necessary and appropriate to make a reasonable accommodation under the Federal Fair Housing Act for a person with a disability.
  3. The hardship did not result from actions taken by the applicant or the property owner. The act of purchasing property with knowledge that circumstances exist that may justify the granting of a variance is not a self-created hardship.
  4. The requested variance is consistent with the spirit, purpose, and intent of the regulation, such that public safety is secured and substantial justice is achieved.

 Notably, this statute establishes an entitlement to a variance upon showing the standards are met. It states that the local government “shall vary” the regulations upon a showing that “all” of the standards are met.

Degree of Hardship Required

As historically interpreted by the courts, the most significant limitation on the variance power is the requirement that a petitioner establish that compliance with the strict terms of the ordinance would cause unnecessary hardship.

There is broad legal consensus that to be “unnecessary,” this requisite burden must be substantial. Inherent in any regulatory scheme is the understanding that some burdens shared by all do not rise to the level of qualifying the owner for variance consideration. The courts have held with near uniformity that even though more profitable uses are available or that the cost of compliance increases the cost of development, these factors do not constitute undue hardship. However, what constitutes the minimum reasonable use that must be allowed or when the additional costs imposed to develop in strict compliance with zoning standards become unduly excessive are the most difficult issues of judgment and discretion to be determined in variance decisions.

The first major North Carolina case on zoning variances, Lee v. Board of Adjustment,[1] involved a request to build a grocery store/service station in Rocky Mount in a district zoned exclusively for residential use. This case addressed the “undue” hardship required to qualify for variance consideration. Because the applicant only held an option to purchase the land, the court ruled, he would suffer no undue hardship.[2] The court noted that the applicant could simply not execute the option, thereby avoiding any hardship at all. The court also noted that there was no hardship based on the contention that the proposed use would be more profitable:

It is erroneous to base a conclusion that the denial of an application would work an unnecessary hardship because the applicant could earn a better income from the type of building proposed.

The financial situation or pecuniary hardship of a single owner affords no adequate grounds for putting forth this extraordinary power affecting other property owners as well as the public.[3]

The court in Williams v. North Carolina Department of Environment & Natural Resources further explored the requirement for unnecessary hardship.[4] It held that the owner’s possession of other developable property nearby was irrelevant, as the variance must be considered strictly in relation to the property, not the owner of the property. The critical inquiry, the court held, was whether the property could be put to some reasonable use without a variance.

The court in Showcase Realty & Construction Co. v. City of Fayetteville Board of Adjustment [5] likewise held that the petitioner for a variance must present substantial evidence regarding the impact of the ordinance on the owner’s ability to make reasonable use of the property. The court noted that the board could not simply rely on a conclusory statement and that the financial cost of compliance alone (in this case the relocation of an improperly placed concrete slab for a building under construction) was insufficient to establish the requisite unnecessary hardship.

In contrast, the court found sufficient hardship to justify a variance in Turik v. Town of Surf City.[6] The town issued a building permit, and construction was under way in accordance with that permit. The adjoining property owner then objected and submitted a new survey that, if accurate, would have resulted in the pilings of the permitted building being 7.2 inches inside the mandated setback. While not explicitly addressing the degree of hardship involved, the court noted that the hardship was real (it would require demolition or substantial alteration of the existing partially completed building) and emphasized that it was not self-created, as the owner made good-faith reliance on what appeared to be a valid survey prepared by a licensed surveyor.[7]

The General Assembly clarified the zoning-variance standard in 2013 to address the issue of whether retention of any reasonable use was disqualifying for a variance. G.S. 160D-705(d)(1) was amended to explicitly provide that a showing of no reasonable use of the property without a variance is not required.[8]


Related Blog Posts

Variance Standards: What is hardship? And when is it unnecessary? - Coates’ Canons NC Local Government Law (unc.edu) (May, 2014)

Hardship, Reasonable Use of Land, and Zoning Variances - Coates’ Canons NC Local Government Law (unc.edu) (Nov., 2010)

[1]. 226 N.C. 107, 37 S.E.2d 128 (1946).

[2]. “He possesses no present right to erect a building on the lot described in his contract. To withhold from him a building permit to do what he has no present right to do cannot, in law, impose an ‘undue and unnecessary hardship’ upon him.” Id. at 110, 37 S.E.2d at 131.

[3]. Id. (citations omitted).

[4]. 144 N.C. App. 479, 548 S.E.2d 793 (2001). The case involved judicial review of the denial of a Coastal Area Management Act variance. The terms of the variance standard in this statute are similar to those for zoning variances. This statute was amended in 2002 to delete the reference to “practical difficulties” as a variance standard, retaining only the requirement for a showing of “unnecessary hardships.” S.L. 2002-68. That same amendment was later made for the zoning-variance statute. S.L. 2013-126.

[5]. 155 N.C. App. 516, 573 S.E.2d 737 (2002).

[6]. 182 N.C. App. 427, 642 S.E.2d 251 (2007).

[7]. The minimal amount of the dimensional variance sought was also of clear importance to the court, which concluded that such a small variation did not conflict with the purpose of the ordinance and would have minimal, if any, harm to the neighbor. See also Stealth Props., LLC v. Town of Pinebluff Bd. of Adjustment, 183 N.C. 461, 645 S.E.2d 144, review denied, 361 N.C. 703, 653 S.E.2d 153 (2007). This case involved a variance necessitated by a misunderstanding about which zoning district applied to the property on which the petitioner placed a modular home. The petitioner erroneously thought the property was in a zoning district that required a fifteen-foot setback. The property was actually in a district requiring a twenty-five-foot setback. The petitioner’s application noted a sixteen-foot setback, but the permit (a certificate of zoning compliance) noted a twenty-five-foot setback. The petitioner built at the sixteen-foot setback, and the error was not caught until construction was complete. When the certificate of occupancy was denied, a variance was sought and denied. The court held that the variance denial was not supported by substantial, competent, and material evidence since a malfunction of the recording equipment and a disagreement about the minutes led to no transcript or detailed record of the evidence being a part of the record on appeal. The court, however, held the setback requirement to be ambiguous and ordered the variance issued on remand.

[8]. This provision was added by S.L. 2013-126.

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